« Home | America and the Courts » | Beer Review: Smithwick's Ale » | Law Student Blogger Directory » | The Dubitante Opinion » | Scalia: Let Joe Six-Pack Decide » | Chief Justice Roberts: Uniter, Not Divider » | Judge Sykes' Speech Getting Attention » | Former Thomas Clerk is New CJ of Colorado » | Bar Exam Failures » | Ginsburg: Hangin' On » 

Sunday, March 19, 2006 

When Senators Run the Show

Former Scalia clerk and Bench Memos guru Ed Whelan has an article in the new issue of the Weekly Standard (available now on Whelan's site) about federal judges and why we get them. Consider these two men...
A Los Angeles-area attorney, Smith, 64, has specialized for nearly four decades in real estate transactions--a specialty that has little bearing on the questions that occupy federal courts. In his one term as a member of a state antidiscrimination commission, he "distinguished himself" by "his time-management skills," says one of his supporters. He recently explained his decision to step down from the commission by implying disdain for his fellow party members: "I'm a Republican, but I'm a Republican with a heart."
Consider also David L. Bunning, whom President Bush nominated to a federal district judgeship in 2001. Thirty-five years old when he was nominated, Bunning had been a lawyer for only ten years. Citing his "very limited and shallow" experience with civil cases, his not "particularly challenging" criminal caseload as a federal prosecutor, his unimpressive writing, and his middling academic record, the ABA rated Bunning "not qualified" for a judgeship. Whether or not one credits the ABA rating--a minority of the committee did find Bunning "qualified"--it would be difficult to argue that Bunning was prime judgeship material.
Bunning was easily confirmed to his judgeship with no resistance from the Senate Democrats. Smith is on the fast track to getting his seat too. Why?

The answer may surprise you, but it shouldn't if you've been paying attention to the politics of judges in the past few years.
For the key facts driving Smith's candidacy are that Barbara Boxer, the ultraliberal senator from California, recommended his nomination and that Smith is the brother of Oregon's Republican senator Gordon Smith. His brother and Boxer, Milan Smith says, "are very good friends." As for Bunning, the district judgeship that he now occupies is in Kentucky, the home state of Republican senator Jim Bunning, who, not coincidentally, is his father.
Whenever someone refers to the Senate as "the world's greatest deliberative body", I can't help but laugh. Whelan's article goes on to explain in detail how Senators control large aspects of the judicial nomination and confirmation process.

I have nothing against Smith or Bunning. They might become excellent judges. However, it's impossible to say with a straight face that they are top legal minds. They got their judgeships because of who they are and who they know. Isn't it odd that these judges are not the "controversial" ones? The ruckus over judges during the past few years centered on the overly qualified candidates. People like Miguel Estrada, Terrence Boyle, William Pryor (eventually confirmed), and Brett Kavanaugh were blocked by Senate Democrats. Their resumes are a little deeper than real estate practice and a light federal docket.

Brilliant, skilled judges are dangerous for the Democrats for many reasons, like when a vacancy develops on the Supreme Court. Someone needs to light a fire under Senator Specter's chair and get him to get these worthy judges confirmed.

This didn't make any sense. When Senate Democrats want to confirm a judge, that doesn't make the judge a "gimmie". It's actually strange that this is the fault of the Democrats at all. They didn't nominate the ridiculously underqualified judges to begin with -- the White House did. Yes, the democrats should have put up some resistance... but shouldn't the republicans have done something also?

Hell no. There is no reason for ANY of the Senators, regardless of political party, to rock the boat in how judges are nominated. They have a nice little system worked out. Through these arcane nomination practices, they have effectively taken control of district court nominations from the White House.

They've been able to do this because (1.) no one gives a damn about district court judges, and (2.) the vacant judgeship in the eastern district of Oklahoma ranks very low on the White House's list of priorities. The White House doesn't want to fight on a "non-important" issue, the Senators see a way to hand out some patronage appointments, and we get the current system.

The ridiculously underqualified are nominated because the Senators want them. They are the sons and brothers and close friends of people to important supporters and colleagues. The Senators like handing out favors and they especially like it when the opposing party doesn't appoint great legal minds to judgeships.

Look back to Senators Feingold and Kohl helping Lynn Adelman onto the federal bench (and the disaster that has followed). Look back to Senator Feinstein's blocking of Randy Smith. She blue slipped him because that seat on the Ninth Circuit is a "California seat" in her mind (and in the minds of most Senators).

I think Whelan's being way too naive and optimistic in his concluding points. Specter, Frist, and the rest of the Republicans in the Senate aren't going to change anytime soon. The system works for them too. They are mad about Boyle, Kavanaugh, etc. being blocked, but I doubt that's enough to make them voluntarily give up the nominating power that they've managed to take away from the White House (under any administration).

Post a Comment
Edit Comment

About me

  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
  • E-mail Me
My profile